----- Forwarded Message -----
From: "John McMillan" <mcmillanj@att.net>
To: "Travis County DA's Office Open Records (2015)" <daopenrecordsrequests@traviscountytx.gov>, "Sara Guerra Winn" <sara.guerrawinn@traviscountytx.gov>, "APD Officer James Turner" <james.turner@austintexas.gov>, "Mike King" <michael.king@austintexas.gov>, "chad.atkinson" <chad.atkinson@slcgov.com>, "Lelan Larroque" <lelan.larroque@austintexas.gov>, "leo.abila" <leo.abila@slcgov.com>, "APD Dist Rep Espinoza" <ruben.espinoza@austintexas.gov>, "Spencer Cronk" <spencer.cronk@austintexas.gov>, "Austin Mayor Steve Adler" <steve.adler@austintexas.gov>, "public.information@texasattorneygeneral.gov" <public.information@texasattorneygeneral.gov>, "Attorney General of Utah" <uag@utah.gov>, "State Bar of Texas Govt. Relations" <govt.relations@texasbar.com>, "communications@utahbar.org" <communications@utahbar.org>, "Salt Lake County (UT) District Attorney 2022" <districtattorney@slco.org>, "Delia Garza" <delia.garza@traviscountytx.gov>, "Mayor Wilson" <mayor@slco.org>, "todd.mitchell" <todd.mitchell@slcgov.com>, "marie.stewart" <marie.stewart@slcgov.com>, "Drew Hadley" <drew.hadley@slcgov.com>, "Utah Restaurant Association 2022" <info@utahrestaurantassociation.org>, "TRA General Counsel Kenneth Besserman" <kbesserman@tramail.org>, "letters@statesman.com" <letters@statesman.com>, "Deseret News 2022" <dnweb@deseretnews.com>, "newsmedia@ldschurch.org" <newsmedia@ldschurch.org>, "nytnews@nytimes.com" <nytnews@nytimes.com>, "Criminal Justice Journalists Board Member Rashbaum" <rashbaum@nytimes.com>, "Steven Rich" <steven.rich@washpost.com>, "Austin Chronicle Editors" <mail@austinchronicle.com>, "KXAN TV News Investigations" <reportit@kxan.com>
Sent: Mon, Nov 13, 2023 at 5:23 PM
Subject: 11-13-23 PIR to Travis County (TX) District Atty
November 13, 2023
Dear Open Records Coordinator for the Travis County District Attorney's Office in Austin, Texas,
Please disregard the note (directly below) from me containing a typo error---I had been attempting to type the word "disc"---- that was somehow sent to you this morning without my having intended to press the "send" button on my cell phone as I sat outdoors on a bench in preparation for clocking in minutes later inside a workplace of mine in Murray, Utah.
First-rate Paralegal Ramiro Gonzalez of the Travis County Attorney's Office in Austin helpfully informed me in writing this morning (below) that I may need to write to you again in order to politely request from you a hard copy of, or a compact disc containing copies of, any and all documents on file with your DA's Office in Austin, Texas, that are responsive to my October 23, 2023, e-mail Open Records Request to your DA's Office.
That October 23 request of mine had requested "a copy of any and all e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023."
Thank you in advance for your very helpful reply letter to me on this courtesy follow-up Texas Open Records request I am sending to you based on polite written guidance I received today from Mr. Ramiro Gonzalez.
I hope to hear from you soon.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 South 200 East, Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My Date of Birth: 4-27-1957. My Place of Birth: Lincoln, Nebraska.
Sent from AT&T Yahoo Mail on Android
____
----- Forwarded Message -----
From: "John McMillan" <mcmillanj@att.net>
To: "Travis County DA's Office Open Records (2015)" <daopenrecordsrequests@traviscountytx.gov>
Cc: "Sara Guerra Winn" <sara.guerrawinn@traviscountytx.gov>
Sent: Mon, Nov 13, 2023 at 8:43 AM
Subject: Fw: [CAUTION EXTERNAL] Fw: Response to Request for Information and Withdrawal - McMillan, J. (TCDA) ORR #23.0547
Dear Open Records Coordinator for the Travis County District Attorney's Office,
I never received the dud.
Sent from AT&T Yahoo Mail on Android
______
----- Forwarded Message -----
From: "Ramiro Gonzalez" <Ramiro.Gonzalez@traviscountytx.gov>
To: "John McMillan" <mcmillanj@att.net>
Sent: Mon, Nov 13, 2023 at 7:31 AM
Subject: RE: [CAUTION EXTERNAL] Fw: Response to Request for Information and Withdrawal - McMillan, J. (TCDA) ORR #23.0547
Dear Mr. McMillan,
This email is in response to your email below and attached. Please be advised I am not the individual designated to receive public information requests on behalf of the Travis County District Attorney’s Office (“TCDA”). The Travis County Attorney’s Office provided assistance to TCDA regarding your public information request to their office. Further, our office was not involved in mailing any CD to you with responsive information from the TCDA. As such, I cannot confirm what was released. Lastly, in light of your follow up email pointing out the specific criteria of your request, the CD may no longer be responsive to your request. You may wish to address that with TCDA.
In accordance with section 552.301(c), an electronic request must be sent to the public information officer or person so designated. For the Travis County District Attorney’s Office, the public information email address is the following: DAOpenRecordsRequests@traviscountytx.gov. Once the request is received, it will be processed accordingly and you will receive a response within 10 business days.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
___
From: John McMillan <mcmillanj@att.net>
Sent: Thursday, November 9, 2023 4:27 PM
To: Ramiro Gonzalez <Ramiro.Gonzalez@traviscountytx.gov>;
Subject: [CAUTION EXTERNAL] Fw: Response to Request for Information and Withdrawal - McMillan, J. (TCDA) ORR #23.0547
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
November 9, 2023
Dear Travis County Attorney's Office Paralegal Ramiro Gonzalez in Austin, Texas,
A respectful FYI to yourself and your Travis County Government colleagues in Austin, Texas, on the friendly follow-up letter (directly below) that I wrote and sent to you earlier today.
Best Wishes,
requestor John Kevin McMillan of Salt Lake City, Utah.
My cell phone: (512) 993-7305.
My home phone: (801) 355-0850.
Sent from AT&T Yahoo Mail on Android [go.onelink.me]
----- Forwarded Message -----
From: "John McMillan" <mcmillanj@att.net>
To: "Ramiro.Gonzalez@traviscountytx.gov" <Ramiro.Gonzalez@traviscountytx.gov>, "State Bar of Texas Govt. Relations" <govt.relations@texasbar.com>, "letters@statesman.com" <letters@statesman.com>, "Fox News SLC 2022" <news@fox13now.com>, "Austin Chronicle Editors" <mail@austinchronicle.com>, "KXAN TV News Investigations" <reportit@kxan.com>
Cc:
Sent: Thu, Nov 9, 2023 at 10:35 AM
Subject: Re: Response to Request for Information and Withdrawal - McMillan, J. (TCDA) ORR #23.0547
Dear Paralegal Ramiro Gonzalez in the Travis County Attorney's Office in Austin, Texas,
Thank you for your November 8, 2023, e-mail reply (below) letter to me.
I have been previously informed by your very influential DA's Office that a disc of stored legal documents was to be sent to me on Monday, November 6, that were reportedly "responsive" to my October 23, 2023, Open Records Request.
That request of mine had requested "a copy of any and all e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023."
Mr. Gonzalez, please confirm for me in writing that the disc sent to me on Monday comprised a complete and final response to my October 23 information request.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 South 200 East, Apt. 912, Salt Lake City, UT 84111
Sent from AT&T Yahoo Mail on Android [go.onelink.me]
___
On Wed, Nov 8, 2023 at 8:12 AM, Ramiro Gonzalez
<Ramiro.Gonzalez@traviscountytx.gov> wrote:
Dear Mr. McMillan,
Thank you for pointing out your comment below. In light of that, the Travis County District Attorney’s Office does not have any responsive information regarding your request. Please see the attached withdrawal letter regarding your request for public information.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
___
From: John McMillan <mcmillanj@att.net>
Sent: Monday, November 6, 2023 7:32 PM
To: Matthew Entsminger <Matthew.Entsminger@traviscountytx.gov>; Ramiro Gonzalez <Ramiro.Gonzalez@traviscountytx.gov
Subject: [CAUTION EXTERNAL] Fw: Text of Travis County Government's Legal Request to TX OAG to withhold from me one or more docs about my being a 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
From public-information requestor John Kevin McMillan, 535 South 200 East. Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone number: (512) 993-7305. My home phone: (512) 801-355-0850.
November 6, 2023
A respectful FYI to each of you very influential government officials and law-enforcement officers on the following e-mail letter and attached officially signed legal correspondence I received this Monday, November 6, 2023, from Paralegal Ramiro "Ram" Gonzalez of the Travis County Attorney's Office in Austin, Texas, and from Travis County Assistant County Attorney Matthew R. Entsminger, respectively. Please note that I have bold-faced some of the text in order to call attention to it.
The e-mail letter and the attached legal letter seeking official permission from the Attorney General of Texas to withhold legal documents from me were in response to my October 23, 2023-received e-mail Open Records Request to the Travis County District Attorney's Office in which I sought a copy of any and all legal documents received or produced in their DA's Office in Austin during the period from 8 a.m. January 1, 2021, until 8 a.m. October 23, 2023, that specifically referred to me as being a "crime suspect" or "expected future crime suspect".
----- Forwarded Message -----
From: Ramiro Gonzalez <ramiro.gonzalez@traviscountytx.gov>
To: John McMillan <mcmillanj@att.net>
Cc: Susie Duttinger <susie.duttinger@traviscountytx.gov>; Matthew Entsminger <matthew.entsminger@traviscountytx.gov>; Reva Hall <reva.hall2@traviscountytx.gov>
Sent: Monday, November 6, 2023 at 11:28:27 AM MST
Subject: RE: TCDA ORR #23.0547
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA") regarding your request below. Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information on a disc via regular mail.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
___
From: John McMillan <mcmillanj@att.net>
Sent: Sunday, October 22, 2023 1:27 AM
To: DAOpenRecordsRequests <DAOpenRecordsRequests@traviscountytx.gov>
Subject: [CAUTION EXTERNAL] 10-22-23 PIR: any TCDA docs re: me as 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
________________________________
To: Open Records Division Coordinator,
Travis County District Attorney's (TCDA) Office,
Travis County Government,
Ronald Earle Building,
416 West 11th Street,
Austin, Texas 78701.
FAX number: 512-854-4206.
Main phone number for your DA's Office: (512) 854-9400.
Sunday, October 22, 2023
Dear Travis County District Attorney's Office Open Records Coordinator,
This is a follow-up Open Records request in which I seek to obtain from you a copy of any and all e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023.
My full legal name is "John Kevin McMillan". My date of Birth is 4-27-1957, and my birthplace city is Lincoln, Nebraska.
This follow-up public information request was prompted by an October 12, 2023, e-mail reply letter (below) to me in which paralegal Ramiro Gonzalez (of the Travis County Attorney's Office)...informed me in writing that the Travis County District Attorney's Office in Austin is currently seeking official permission from the Attorney General of Texas to withhold from me numerous recent legal documents responsive to a public information request of mine that each directly refer to me by name.
---Forwarded Message -----
"Ramiro Gonzalez"
<Ramiro.Gonzalez@traviscountytx.gov>
To: "mcmillanj@att.net" <
@att.net>
Cc: "Susie Duttinger" <Susie.Duttinger@traviscountytx.gov>, "Matthew Entsminger" <Matthew.Entsminger@traviscountytx.gov>, "Reva Hall" <Reva.Hall2@traviscountytx.gov>
Sent: Thu, Oct 12, 2023 at 11:28 AM
Subject: Response to Request for Information - McMillan, J. (TCDA) #23.0505
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA"). Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information via a separate email.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
_______
I myself officially became a permanent resident of the great state of Utah on January 1, 2023.
During the entire time period ever since State Bar of Texas member attorney Jose Garza assumed elective office as Travis County DA on January 1, 2021, my only residential address in Travis County, Texas, was at the gated-community Pebble Creek Apartments complex in northeast Austin.
My bolt-locked solo-occupancy rental apartment unit address at that complex was: 8805 North Plaza Drive, Apt. 2418, Building 17, Second Floor, Austin, Texas, 78753.
The signed official lease agreement of mine for that solo-occupancy rental apartment unit was officially terminated by me with written consent from the polite management team for Pebble Creek Apartments effective on a cited day during the first week of January in 2022.
My home phone number during the time period when I resided at Pebble Creek Apartments in Austin was (512) 342-2295.
My cell phone number, after I purchased and obtained my first-ever cell phone in August 2019, was and continues to be: (512) 993-7305.
My primary e-mail address has been the same throughout nearly all of this century so far: mcmillanj@att.net.
My solo-occupancy rental-apartment-unit home address ever since June 1, 2022:
535 South 200 East, Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone: (512) 993-7305.
My current home phone: (801) 355-0850.
Thank you in advance for your prompt, very thorough, and authoritative reply letter to me in response to this follow-up Texas Open Records Request of mine to yourself.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 S. 200 E., Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
________________________________
This electronic mail message, including any attachments, may be confidential or privileged under applicable law. This email is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this email, you are notified that any use, dissemination, distribution, copying, disclosure or any other action taken in relation to the content of this email including any attachments is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete the original and any copy of this email, including secure destruction of any printouts.
_________________________________
(Below is the exactly quoted transcript of the November 6, 2023-dated and signed legal letter from Travis County Assistant County Attorney Matthew R. Entsminger that he wrote and sent to Texas Attorney General's Office state agency Open Records Division Chief Justin Gordon in Austin:)
DELIA GARZA
COUNTY ATTORNEY
LUCIO A. DEL TORO
FIRST ASSISTANT
LESLIE DIPPEL
EXECUTIVE COUNTY ATTORNEY
314 W. 11TH STREET
GRANGER BLDG., 5TH FLOOR
AUSTIN, TEXAS 78701
P. O. BOX 1748
AUSTIN, TEXAS 78767
(512) 854-9513
FAX: (512) 854-4808
TRANSACTIONS AND LAND USE
DIVISION
ANN-MARIE SHEELY, DIRECTOR
JAMES D. NICKELL, ASSISTANT DIRECTOR
BARBARA WILSON
MATTHEW R. ENTSMINGER
KATHERINE R. FITE
REBECCA M. COMBS
LINDA D. MARTINEZ
ANN CARDENAS
CHRISTOPHER GILMORE*†
JULIE JOE
JENNIFER L. HOPGOOD
UJAALA RASHID-FERRARO
JACQUELINE A. SÁNCHEZ
1166057-1 383 Page 1 of 3
November 6, 2023
Hand Delivered
Mr. Justin Gordon, Division Chief
Office of the Attorney General of Texas—Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Re: Request from John McMillan received on October 23, 2023
(Footnote 1: The request was sent by email on Sunday, October 22, 2023, during a non-workday; accordingly, the request is
considered received the next business day.)
—Request for Ruling and
Supplemental Brief
Dear Mr. Gordon:
Pursuant to the Texas Public Information Act (“PIA”), the Travis County District Attorney’s Office(“TCDA”) received a written request for “any and all emails or other documents” regarding a named individual and listed date range. TCDA will release some emails. TCDA has determined the remaining information is excepted from required disclosure by Government Code sections 552.107 and 552.111. Accordingly, we request an Attorney General decision on the matter as required by section 552.301 of the Government Code. Our written comments stating the reason the raised exceptions apply are set out below. A representative sample of the information at issue is enclosed.
By copy of this letter we are informing the requestor that TCDA intends to withhold some of the requested information and has asked for a decision from the Attorney General.
Some of the requested information contains privileged attorney-client
communications excepted from disclosure by Government Code section 552.107 and
Texas Rule of Evidence 503.
Government Code section 552.107(1) protects information covered by the attorney-client privilege. When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that the information constitutes or documents a communication. Id. at 7. Second, the communication must have been made “for the purpose of facilitating the rendition of professional legal services” to the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.—Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than that of attorney).
Thus, a governmental body must inform your office of the identities and capacities of the individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege qpplies only to a confidential communication, id. § 503(b)(1), meaning it was “not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Id. § 503(a)(5). Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no writ). Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein).
Some of the requested information, as marked, consists of email communications between and among officials and employees from TCDA (footnote 2: Jackie Wood and Efrain De la Fuente, Assistant District Attorneys; Sara Guerra Winn and Susie Duttinger, paralegals; Ashley Zamarron, Isabella Salinas and Bridget Martinez, legal secretaries) and attorneys with the Travis County Attorney’s Office (footnote 3: Assistant County Attorneys Matthew Entsminger and Michelle Case; Ramiro Gonzalez, paralegal).
These emails document communications made for the purpose of facilitating the rendition of professional legal services to TCDA. These emails were made in confidence and confidentiality has been maintained. Accordingly, TCDA intends to withhold these privileged communications pursuan to Government Code section 552.107 and Texas Rule of Evidence 503.
The remaining information at issue may be withheld under Government Code section552.111 as attorney work product.
Section 552.111 of the Government Code excepts from disclosure “[a]n interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency[.]” Gov’t Code § 552.111. This section encompasses the attorney work product privilege found in rule 192.5 of the Texas Rules of Civil Procedure. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 677 (2002). Rule 192.5 defines work product as:
(1) material prepared or mental impressions developed in anticipation of litigation or
for trial by or for a party or a party’s representatives, including the party’s attorneys,
consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and
the party’s representatives or among a party's representatives, including a party’s
attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
TEX. R. CIV. P. 192.5(a)(1)-(2). A governmental body seeking to withhold information under this
exception bears the burden of demonstrating the information was created or developed for trial or in
anticipation of litigation by or for a party or party’s representative. Id.; ORD 677 at 6-8.
For your office to conclude that the information was made or developed in anticipation of
litigation, a governmental body must show that:
a) a reasonable person would have concluded from the totality of the circumstances ...
that there was a substantial chance that litigation would ensue; and
b) the party resisting discovery believed in good faith that there was a substantial
chance that litigation would ensue and [created or obtained the information] for the
purpose of preparing for such litigation.
Nat’t Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A “substantial chance” of litigation
does not mean a statistical probability, but rather “that litigation is more than merely an abstract
possibility or unwarranted fear.” Id. at 204; ORD 677 at 7.
The information at issue relates to an Open Records Complaint against TCDA brought to the
Attorney General’s office, which is the appropriate authority for pursuing such complaints.
Accordingly, TCDA may withhold the remaining responsive information under the attorney work
product privilege of section 552.111 of the Government Code.
In conclusion, we request your determination as to whether the information at issue may be.withheldfrom the requestor. If you have any questions, please contact me at (512) 854-9642, or by
e-mail at matthew.entsminger@traviscountytx.gov.
Sincerely,
Matthew Entsminger
Assistant County Attorney
Encl. Request letter; representative sample of requested records
c: Susie Duttinger, TCDA
(via email, without enclosures)
John McMillan
535 South 200 East, Apt. 912, Ninth Floor
Salt Lake City, UT 84111
(via email to: mcmillanj@att.net, without enclosures
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
Dear Paralegal Ramiro Gonzalez in the Travis County Attorney's Office in Austin, Texas,
Thank you for your November 8, 2023, e-mail reply (below) letter to me.
I have been previously informed by your very influential DA's Office that a disc of stored legal documents was to be sent to me on Monday, November 6, that were reportedly "responsive" to my October 23, 2023, Open Records Request.
That request of mine had requested "a copy of any and all
e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023."
Mr. Gonzalez, please confirm for me in writing that the disc sent to me on Monday comprised a complete and final response to my October 23 information request.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 South 200 East, Apt. 912, Salt Lake City, UT 84111.
Sent from AT&T Yahoo Mail on Android [go.onelink.me]
On Wed, Nov 8, 2023 at 8:12 AM, Ramiro Gonzalez
<Ramiro.Gonzalez@traviscountytx.gov> wrote:
Dear Mr. McMillan,
Thank you for pointing out your comment below. In light of that, the Travis County District Attorney’s Office does not have any responsive information regarding your request. Please see the attached withdrawal letter regarding your request for public information.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
From: John McMillan <mcmillanj@att.net>
Sent: Monday, November 6, 2023 7:32 PM
To: Matthew Entsminger <Matthew.Entsminger@traviscountytx.gov>; Ramiro Gonzalez <Ramiro.Gonzalez@traviscountytx.gov
Subject: [CAUTION EXTERNAL] Fw: Text of Travis County Government's Legal Request to TX OAG to withhold from me one or more docs about my being a 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
From public-information requestor John Kevin McMillan, 535 South 200 East. Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone number: (512) 993-7305. My home phone: (512) 801-355-0850.
November 6, 2023
A respectful FYI to each of you very influential government officials and law-enforcement officers on the following e-mail letter and attached officially signed legal correspondence I received this Monday, November 6, 2023, from Paralegal Ramiro "Ram" Gonzalez of the Travis County Attorney's Office in Austin, Texas, and from Travis County Assistant County Attorney Matthew R. Entsminger, respectively. Please note that I have bold-faced some of the text in order to call attention to it.
The e-mail letter and the attached legal letter seeking official permission from the Attorney General of Texas to withhold legal documents from me were in response to my October 23, 2023-received e-mail Open Records Request to the Travis County District Attorney's Office in which I sought a copy of any and all legal documents received or produced in their DA's Office in Austin during the period from 8 a.m. January 1, 2021, until 8 a.m. October 23, 2023, that specifically referred to me as being a "crime suspect" or "expected future crime suspect".
----- Forwarded Message -----
From: Ramiro Gonzalez <ramiro.gonzalez@traviscountytx.gov>
To: John McMillan <mcmillanj@att.net>
Cc: Susie Duttinger <susie.duttinger@traviscountytx.gov>; Matthew Entsminger <matthew.entsminger@traviscountytx.gov>; Reva Hall <reva.hall2@traviscountytx.gov>
Sent: Monday, November 6, 2023 at 11:28:27 AM MST
Subject: RE: TCDA ORR #23.0547
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA") regarding your request below. Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information on a disc via regular mail.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
From: John McMillan <mcmillanj@att.net>
Sent: Sunday, October 22, 2023 1:27 AM
To: DAOpenRecordsRequests <DAOpenRecordsRequests@traviscountytx.gov>
Subject: [CAUTION EXTERNAL] 10-22-23 PIR: any TCDA docs re: me as 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
________________________________
To: Open Records Division Coordinator,
Travis County District Attorney's (TCDA) Office,
Travis County Government,
Ronald Earle Building,
416 West 11th Street,
Austin, Texas 78701.
FAX number: 512-854-4206.
Main phone number for your DA's Office: (512) 854-9400.
Sunday, October 22, 2023
Dear Travis County District Attorney's Office Open Records Coordinator,
This is a follow-up Open Records request in which I seek to obtain from you a copy of any and all
e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023.
My full legal name is "John Kevin McMillan". My date of Birth is 4-27-1957, and my birthplace city is Lincoln, Nebraska.
This follow-up public information request was prompted by an October 12, 2023, e-mail reply letter (below) to me in which paralegal Ramiro Gonzalez (of the Travis County Attorney's Office)...informed me in writing that the Travis County District Attorney's Office in Austin is currently seeking official permission from the Attorney General of Texas to withhold from me numerous recent legal documents responsive to a public information request of mine that each directly refer to me by name.
---Forwarded Message -----
"Ramiro Gonzalez"
<Ramiro.Gonzalez@traviscountytx.gov>
To: "mcmillanj@att.net" <
@att.net>
Cc: "Susie Duttinger" <Susie.Duttinger@traviscountytx.gov>, "Matthew Entsminger" <Matthew.Entsminger@traviscountytx.gov>, "Reva Hall" <Reva.Hall2@traviscountytx.gov>
Sent: Thu, Oct 12, 2023 at 11:28 AM
Subject: Response to Request for Information - McMillan, J. (TCDA) #23.0505
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA"). Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information via a separate email.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
_______
I myself officially became a permanent resident of the great state of Utah on January 1, 2023.
During the entire time period ever since State Bar of Texas member attorney Jose Garza assumed elective office as Travis County DA on January 1, 2021, my only residential address in Travis County, Texas, was at the gated-community Pebble Creek Apartments complex in northeast Austin.
My bolt-locked solo-occupancy rental apartment unit address at that complex was: 8805 North Plaza Drive, Apt. 2418, Building 17, Second Floor, Austin, Texas, 78753.
The signed official lease agreement of mine for that solo-occupancy rental apartment unit was officially terminated by me with written consent from the polite management team for Pebble Creek Apartments effective on a cited day during the first week of January in 2022.
My home phone number during the time period when I resided at Pebble Creek Apartments in Austin was (512) 342-2295.
My cell phone number, after I purchased and obtained my first-ever cell phone in August 2019, was and continues to be: (512) 993-7305.
My primary e-mail address has been the same throughout nearly all of this century so far: mcmillanj@att.net.
My solo-occupancy rental-apartment-unit home address ever since June 1, 2022:
535 South 200 East, Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone: (512) 993-7305.
My current home phone: (801) 355-0850.
Thank you in advance for your prompt, very thorough, and authoritative reply letter to me in response to this follow-up Texas Open Records Request of mine to yourself.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 S. 200 E., Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
________________________________
This electronic mail message, including any attachments, may be confidential or privileged under applicable law. This email is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this email, you are notified that any use, dissemination, distribution, copying, disclosure or any other action taken in relation to the content of this email including any attachments is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete the original and any copy of this email, including secure destruction of any printouts.
_________________________________
(Below is the exactly quoted transcript of the November 6, 2023-dated and signed legal letter from Travis County Assistant County Attorney Matthew R. Entsminger that he wrote and sent to Texas Attorney General's Office state agency Open Records Division Chief Justin Gordon in Austin:)
DELIA GARZA
COUNTY ATTORNEY
LUCIO A. DEL TORO
FIRST ASSISTANT
LESLIE DIPPEL
EXECUTIVE COUNTY ATTORNEY
314 W. 11TH STREET
GRANGER BLDG., 5TH FLOOR
AUSTIN, TEXAS 78701
P. O. BOX 1748
AUSTIN, TEXAS 78767
(512) 854-9513
FAX: (512) 854-4808
TRANSACTIONS AND LAND USE
DIVISION
ANN-MARIE SHEELY, DIRECTOR
JAMES D. NICKELL, ASSISTANT DIRECTOR
BARBARA WILSON
MATTHEW R. ENTSMINGER
KATHERINE R. FITE
REBECCA M. COMBS
LINDA D. MARTINEZ
ANN CARDENAS
CHRISTOPHER GILMORE*†
JULIE JOE
JENNIFER L. HOPGOOD
UJAALA RASHID-FERRARO
JACQUELINE A. SÁNCHEZ
1166057-1 383 Page 1 of 3
November 6, 2023
Hand Delivered
Mr. Justin Gordon, Division Chief
Office of the Attorney General of Texas—Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Re: Request from John McMillan received on October 23, 2023
(Footnote 1: The request was sent by email on Sunday, October 22, 2023, during a non-workday; accordingly, the request is
considered received the next business day.)
—Request for Ruling and
Supplemental Brief
Dear Mr. Gordon:
Pursuant to the Texas Public Information Act (“PIA”), the Travis County District Attorney’s
Office (“TCDA”) received a written request for “any and all emails or other documents” regarding a
named individual and listed date range. TCDA will release some emails. TCDA has determined the
remaining information is excepted from required disclosure by Government Code sections 552.107
and 552.111. Accordingly, we request an Attorney General decision on the matter as required by
section 552.301 of the Government Code. Our written comments stating the reason the raised
exceptions apply are set out below. A representative sample of the information at issue is enclosed.
By copy of this letter we are informing the requestor that TCDA intends to withhold some of
the requested information and has asked for a decision from the Attorney General.
Some of the requested information contains privileged attorney-client
communications excepted from disclosure by Government Code section 552.107 and
Texas Rule of Evidence 503.
Government Code section 552.107(1) protects information covered by the attorney-client
privilege. When asserting the attorney-client privilege, a governmental body has the burden of
providing the necessary facts to demonstrate the elements of the privilege to withhold the information
at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate
that the information constitutes or documents a communication. Id. at 7. Second, the communication
must have been made “for the purpose of facilitating the rendition of professional legal services” to
the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney
or representative is involved in some capacity other than that of providing or facilitating professional
legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340
(Tex. App.—Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney
acting in a capacity other than that of attorney).
Thus, a governmental body must inform your office of the identities and capacities of the
individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege
applies only to a confidential communication, id. § 503(b)(1), meaning it was “not intended to be
disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition
of professional legal services to the client or those reasonably necessary for the transmission of the
communication.” Id. § 503(a)(5). Whether a communication meets this definition depends on the
intent of the parties involved at the time the information was communicated. Osborne v. Johnson,
954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no writ). Moreover, because the client may elect to
waive the privilege at any time, a governmental body must explain that the confidentiality of a
communication has been maintained. Section 552.107(1) generally excepts an entire communication
that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the
governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to
entire communication, including facts contained therein).
Some of the requested information, as marked, consists of email communications between
and among officials and employees from TCDA (footnote 2: Jackie Wood and Efrain De la Fuente, Assistant District Attorneys; Sara Guerra Winn and Susie Duttinger, paralegals; Ashley Zamarron, Isabella Salinas and Bridget Martinez, legal secretaries)
and attorneys with the Travis County Attorney’s Office (footnote 3: Assistant County Attorneys Matthew Entsminger and Michelle Case; Ramiro Gonzalez, paralegal).
These emails document communications made for the purpose of facilitating the rendition of
professional legal services to TCDA. These emails were made in confidence and confidentiality has
been maintained. Accordingly, TCDA intends to withhold these privileged communications pursuant
to Government Code section 552.107 and Texas Rule of Evidence 503.
The remaining information at issue may be withheld under Government Code
section 552.111 as attorney work product.
Section 552.111 of the Government Code excepts from disclosure “[a]n interagency or
intraagency memorandum or letter that would not be available by law to a party in litigation with the
agency[.]” Gov’t Code § 552.111. This section encompasses the attorney work product privilege
found in rule 192.5 of the Texas Rules of Civil Procedure. City of Garland v. Dallas Morning News,
22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 677 (2002). Rule 192.5 defines work
product as:
(1) material prepared or mental impressions developed in anticipation of litigation or
for trial by or for a party or a party’s representatives, including the party’s attorneys,
consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and
the party’s representatives or among a party's representatives, including a party’s
attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
TEX. R. CIV. P. 192.5(a)(1)-(2). A governmental body seeking to withhold information under this
exception bears the burden of demonstrating the information was created or developed for trial or in
anticipation of litigation by or for a party or party’s representative. Id.; ORD 677 at 6-8.
For your office to conclude that the information was made or developed in anticipation of
litigation, a governmental body must show that:
a) a reasonable person would have concluded from the totality of the circumstances ...
that there was a substantial chance that litigation would ensue; and
b) the party resisting discovery believed in good faith that there was a substantial
chance that litigation would ensue and [created or obtained the information] for the
purpose of preparing for such litigation.
Nat’t Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A “substantial chance” of litigation
does not mean a statistical probability, but rather “that litigation is more than merely an abstract
possibility or unwarranted fear.” Id. at 204; ORD 677 at 7.
The information at issue relates to an Open Records Complaint against TCDA brought to the
Attorney General’s office, which is the appropriate authority for pursuing such complaints.
Accordingly, TCDA may withhold the remaining responsive information under the attorney work
product privilege of section 552.111 of the Government Code.
In conclusion, we request your determination as to whether the information at issue may be
withheld from the requestor. If you have any questions, please contact me at (512) 854-9642, or by
e-mail at matthew.entsminger@traviscountytx.gov.
Sincerely,
Matthew Entsminger
Assistant County Attorney
Encl. Request letter; representative sample of requested records
c: Susie Duttinger, TCDA
(via email, without enclosures)
John McMillan
535 South 200 East, Apt. 912, Ninth Floor
Salt Lake City, UT 84111
(via email to: mcmillanj@att.net, without enclosures
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
Dear Paralegal Ramiro Gonzalez in the Travis County Attorney's Office in Austin, Texas,
Thank you for your November 8, 2023, e-mail reply (below) letter to me.
I have been previously informed by your very influential DA's Office that a disc of stored legal documents was to be sent to me on Monday, November 6, that were reportedly "responsive" to my October 23, 2023, Open Records Request.
That request of mine had requested "a copy of any and all
e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023."
Mr. Gonzalez, please confirm for me in writing that the disc sent to me on Monday comprised a complete and final response to my October 23 information request.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 South 200 East, Apt. 912, Salt Lake City, UT 84111.
Sent from AT&T Yahoo Mail on Android [go.onelink.me]
On Wed, Nov 8, 2023 at 8:12 AM, Ramiro Gonzalez
<Ramiro.Gonzalez@traviscountytx.gov> wrote:
Dear Mr. McMillan,
Thank you for pointing out your comment below. In light of that, the Travis County District Attorney’s Office does not have any responsive information regarding your request. Please see the attached withdrawal letter regarding your request for public information.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
From: John McMillan <mcmillanj@att.net>
Sent: Monday, November 6, 2023 7:32 PM
To: Matthew Entsminger <Matthew.Entsminger@traviscountytx.gov>; Ramiro Gonzalez <Ramiro.Gonzalez@traviscountytx.gov
Subject: [CAUTION EXTERNAL] Fw: Text of Travis County Government's Legal Request to TX OAG to withhold from me one or more docs about my being a 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
From public-information requestor John Kevin McMillan, 535 South 200 East. Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone number: (512) 993-7305. My home phone: (512) 801-355-0850.
November 6, 2023
A respectful FYI to each of you very influential government officials and law-enforcement officers on the following e-mail letter and attached officially signed legal correspondence I received this Monday, November 6, 2023, from Paralegal Ramiro "Ram" Gonzalez of the Travis County Attorney's Office in Austin, Texas, and from Travis County Assistant County Attorney Matthew R. Entsminger, respectively. Please note that I have bold-faced some of the text in order to call attention to it.
The e-mail letter and the attached legal letter seeking official permission from the Attorney General of Texas to withhold legal documents from me were in response to my October 23, 2023-received e-mail Open Records Request to the Travis County District Attorney's Office in which I sought a copy of any and all legal documents received or produced in their DA's Office in Austin during the period from 8 a.m. January 1, 2021, until 8 a.m. October 23, 2023, that specifically referred to me as being a "crime suspect" or "expected future crime suspect".
----- Forwarded Message -----
From: Ramiro Gonzalez <ramiro.gonzalez@traviscountytx.gov>
To: John McMillan <mcmillanj@att.net>
Cc: Susie Duttinger <susie.duttinger@traviscountytx.gov>; Matthew Entsminger <matthew.entsminger@traviscountytx.gov>; Reva Hall <reva.hall2@traviscountytx.gov>
Sent: Monday, November 6, 2023 at 11:28:27 AM MST
Subject: RE: TCDA ORR #23.0547
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA") regarding your request below. Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information on a disc via regular mail.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
From: John McMillan <mcmillanj@att.net>
Sent: Sunday, October 22, 2023 1:27 AM
To: DAOpenRecordsRequests <DAOpenRecordsRequests@traviscountytx.gov>
Subject: [CAUTION EXTERNAL] 10-22-23 PIR: any TCDA docs re: me as 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
________________________________
To: Open Records Division Coordinator,
Travis County District Attorney's (TCDA) Office,
Travis County Government,
Ronald Earle Building,
416 West 11th Street,
Austin, Texas 78701.
FAX number: 512-854-4206.
Main phone number for your DA's Office: (512) 854-9400.
Sunday, October 22, 2023
Dear Travis County District Attorney's Office Open Records Coordinator,
This is a follow-up Open Records request in which I seek to obtain from you a copy of any and all
e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023.
My full legal name is "John Kevin McMillan". My date of Birth is 4-27-1957, and my birthplace city is Lincoln, Nebraska.
This follow-up public information request was prompted by an October 12, 2023, e-mail reply letter (below) to me in which paralegal Ramiro Gonzalez (of the Travis County Attorney's Office)...informed me in writing that the Travis County District Attorney's Office in Austin is currently seeking official permission from the Attorney General of Texas to withhold from me numerous recent legal documents responsive to a public information request of mine that each directly refer to me by name.
---Forwarded Message -----
"Ramiro Gonzalez"
<Ramiro.Gonzalez@traviscountytx.gov>
To: "mcmillanj@att.net" <
@att.net>
Cc: "Susie Duttinger" <Susie.Duttinger@traviscountytx.gov>, "Matthew Entsminger" <Matthew.Entsminger@traviscountytx.gov>, "Reva Hall" <Reva.Hall2@traviscountytx.gov>
Sent: Thu, Oct 12, 2023 at 11:28 AM
Subject: Response to Request for Information - McMillan, J. (TCDA) #23.0505
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA"). Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information via a separate email.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
_______
I myself officially became a permanent resident of the great state of Utah on January 1, 2023.
During the entire time period ever since State Bar of Texas member attorney Jose Garza assumed elective office as Travis County DA on January 1, 2021, my only residential address in Travis County, Texas, was at the gated-community Pebble Creek Apartments complex in northeast Austin.
My bolt-locked solo-occupancy rental apartment unit address at that complex was: 8805 North Plaza Drive, Apt. 2418, Building 17, Second Floor, Austin, Texas, 78753.
The signed official lease agreement of mine for that solo-occupancy rental apartment unit was officially terminated by me with written consent from the polite management team for Pebble Creek Apartments effective on a cited day during the first week of January in 2022.
My home phone number during the time period when I resided at Pebble Creek Apartments in Austin was (512) 342-2295.
My cell phone number, after I purchased and obtained my first-ever cell phone in August 2019, was and continues to be: (512) 993-7305.
My primary e-mail address has been the same throughout nearly all of this century so far: mcmillanj@att.net.
My solo-occupancy rental-apartment-unit home address ever since June 1, 2022:
535 South 200 East, Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone: (512) 993-7305.
My current home phone: (801) 355-0850.
Thank you in advance for your prompt, very thorough, and authoritative reply letter to me in response to this follow-up Texas Open Records Request of mine to yourself.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 S. 200 E., Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
________________________________
This electronic mail message, including any attachments, may be confidential or privileged under applicable law. This email is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this email, you are notified that any use, dissemination, distribution, copying, disclosure or any other action taken in relation to the content of this email including any attachments is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete the original and any copy of this email, including secure destruction of any printouts.
_________________________________
(Below is the exactly quoted transcript of the November 6, 2023-dated and signed legal letter from Travis County Assistant County Attorney Matthew R. Entsminger that he wrote and sent to Texas Attorney General's Office state agency Open Records Division Chief Justin Gordon in Austin:)
DELIA GARZA
COUNTY ATTORNEY
LUCIO A. DEL TORO
FIRST ASSISTANT
LESLIE DIPPEL
EXECUTIVE COUNTY ATTORNEY
314 W. 11TH STREET
GRANGER BLDG., 5TH FLOOR
AUSTIN, TEXAS 78701
P. O. BOX 1748
AUSTIN, TEXAS 78767
(512) 854-9513
FAX: (512) 854-4808
TRANSACTIONS AND LAND USE
DIVISION
ANN-MARIE SHEELY, DIRECTOR
JAMES D. NICKELL, ASSISTANT DIRECTOR
BARBARA WILSON
MATTHEW R. ENTSMINGER
KATHERINE R. FITE
REBECCA M. COMBS
LINDA D. MARTINEZ
ANN CARDENAS
CHRISTOPHER GILMORE*†
JULIE JOE
JENNIFER L. HOPGOOD
UJAALA RASHID-FERRARO
JACQUELINE A. SÁNCHEZ
1166057-1 383 Page 1 of 3
November 6, 2023
Hand Delivered
Mr. Justin Gordon, Division Chief
Office of the Attorney General of Texas—Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Re: Request from John McMillan received on October 23, 2023
(Footnote 1: The request was sent by email on Sunday, October 22, 2023, during a non-workday; accordingly, the request is
considered received the next business day.)
—Request for Ruling and
Supplemental Brief
Dear Mr. Gordon:
Pursuant to the Texas Public Information Act (“PIA”), the Travis County District Attorney’s
Office (“TCDA”) received a written request for “any and all emails or other documents” regarding a
named individual and listed date range. TCDA will release some emails. TCDA has determined the
remaining information is excepted from required disclosure by Government Code sections 552.107
and 552.111. Accordingly, we request an Attorney General decision on the matter as required by
section 552.301 of the Government Code. Our written comments stating the reason the raised
exceptions apply are set out below. A representative sample of the information at issue is enclosed.
By copy of this letter we are informing the requestor that TCDA intends to withhold some of
the requested information and has asked for a decision from the Attorney General.
Some of the requested information contains privileged attorney-client
communications excepted from disclosure by Government Code section 552.107 and
Texas Rule of Evidence 503.
Government Code section 552.107(1) protects information covered by the attorney-client
privilege. When asserting the attorney-client privilege, a governmental body has the burden of
providing the necessary facts to demonstrate the elements of the privilege to withhold the information
at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate
that the information constitutes or documents a communication. Id. at 7. Second, the communication
must have been made “for the purpose of facilitating the rendition of professional legal services” to
the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney
or representative is involved in some capacity other than that of providing or facilitating professional
legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340
(Tex. App.—Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney
acting in a capacity other than that of attorney).
Thus, a governmental body must inform your office of the identities and capacities of the
individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege
applies only to a confidential communication, id. § 503(b)(1), meaning it was “not intended to be
disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition
of professional legal services to the client or those reasonably necessary for the transmission of the
communication.” Id. § 503(a)(5). Whether a communication meets this definition depends on the
intent of the parties involved at the time the information was communicated. Osborne v. Johnson,
954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no writ). Moreover, because the client may elect to
waive the privilege at any time, a governmental body must explain that the confidentiality of a
communication has been maintained. Section 552.107(1) generally excepts an entire communication
that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the
governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to
entire communication, including facts contained therein).
Some of the requested information, as marked, consists of email communications between
and among officials and employees from TCDA (footnote 2: Jackie Wood and Efrain De la Fuente, Assistant District Attorneys; Sara Guerra Winn and Susie Duttinger, paralegals; Ashley Zamarron, Isabella Salinas and Bridget Martinez, legal secretaries)
and attorneys with the Travis County Attorney’s Office (footnote 3: Assistant County Attorneys Matthew Entsminger and Michelle Case; Ramiro Gonzalez, paralegal).
These emails document communications made for the purpose of facilitating the rendition of
professional legal services to TCDA. These emails were made in confidence and confidentiality has
been maintained. Accordingly, TCDA intends to withhold these privileged communications pursuant
to Government Code section 552.107 and Texas Rule of Evidence 503.
The remaining information at issue may be withheld under Government Code
section 552.111 as attorney work product.
Section 552.111 of the Government Code excepts from disclosure “[a]n interagency or
intraagency memorandum or letter that would not be available by law to a party in litigation with the
agency[.]” Gov’t Code § 552.111. This section encompasses the attorney work product privilege
found in rule 192.5 of the Texas Rules of Civil Procedure. City of Garland v. Dallas Morning News,
22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 677 (2002). Rule 192.5 defines work
product as:
(1) material prepared or mental impressions developed in anticipation of litigation or
for trial by or for a party or a party’s representatives, including the party’s attorneys,
consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and
the party’s representatives or among a party's representatives, including a party’s
attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
TEX. R. CIV. P. 192.5(a)(1)-(2). A governmental body seeking to withhold information under this
exception bears the burden of demonstrating the information was created or developed for trial or in
anticipation of litigation by or for a party or party’s representative. Id.; ORD 677 at 6-8.
For your office to conclude that the information was made or developed in anticipation of
litigation, a governmental body must show that:
a) a reasonable person would have concluded from the totality of the circumstances ...
that there was a substantial chance that litigation would ensue; and
b) the party resisting discovery believed in good faith that there was a substantial
chance that litigation would ensue and [created or obtained the information] for the
purpose of preparing for such litigation.
Nat’t Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A “substantial chance” of litigation
does not mean a statistical probability, but rather “that litigation is more than merely an abstract
possibility or unwarranted fear.” Id. at 204; ORD 677 at 7.
The information at issue relates to an Open Records Complaint against TCDA brought to the
Attorney General’s office, which is the appropriate authority for pursuing such complaints.
Accordingly, TCDA may withhold the remaining responsive information under the attorney work
product privilege of section 552.111 of the Government Code.
In conclusion, we request your determination as to whether the information at issue may be
withheld from the requestor. If you have any questions, please contact me at (512) 854-9642, or by
e-mail at matthew.entsminger@traviscountytx.gov.
Sincerely,
Matthew Entsminger
Assistant County Attorney
Encl. Request letter; representative sample of requested records
c: Susie Duttinger, TCDA
(via email, without enclosures)
John McMillan
535 South 200 East, Apt. 912, Ninth Floor
Salt Lake City, UT 84111
(via email to: mcmillanj@att.net, without enclosures
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
Dear Paralegal Ramiro Gonzalez in the Travis County Attorney's Office in Austin, Texas,
Thank you for your November 8, 2023, e-mail reply (below) letter to me.
I have been previously informed by your very influential DA's Office that a disc of stored legal documents was to be sent to me on Monday, November 6, that were reportedly "responsive" to my October 23, 2023, Open Records Request.
That request of mine had requested "a copy of any and all
e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023."
Mr. Gonzalez, please confirm for me in writing that the disc sent to me on Monday comprised a complete and final response to my October 23 information request.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 South 200 East, Apt. 912, Salt Lake City, UT 84111.
Sent from AT&T Yahoo Mail on Android [go.onelink.me]
On Wed, Nov 8, 2023 at 8:12 AM, Ramiro Gonzalez
<Ramiro.Gonzalez@traviscountytx.gov> wrote:
Dear Mr. McMillan,
Thank you for pointing out your comment below. In light of that, the Travis County District Attorney’s Office does not have any responsive information regarding your request. Please see the attached withdrawal letter regarding your request for public information.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
From: John McMillan <mcmillanj@att.net>
Sent: Monday, November 6, 2023 7:32 PM
To: Matthew Entsminger <Matthew.Entsminger@traviscountytx.gov>; Ramiro Gonzalez <Ramiro.Gonzalez@traviscountytx.gov
Subject: [CAUTION EXTERNAL] Fw: Text of Travis County Government's Legal Request to TX OAG to withhold from me one or more docs about my being a 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
From public-information requestor John Kevin McMillan, 535 South 200 East. Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone number: (512) 993-7305. My home phone: (512) 801-355-0850.
November 6, 2023
A respectful FYI to each of you very influential government officials and law-enforcement officers on the following e-mail letter and attached officially signed legal correspondence I received this Monday, November 6, 2023, from Paralegal Ramiro "Ram" Gonzalez of the Travis County Attorney's Office in Austin, Texas, and from Travis County Assistant County Attorney Matthew R. Entsminger, respectively. Please note that I have bold-faced some of the text in order to call attention to it.
The e-mail letter and the attached legal letter seeking official permission from the Attorney General of Texas to withhold legal documents from me were in response to my October 23, 2023-received e-mail Open Records Request to the Travis County District Attorney's Office in which I sought a copy of any and all legal documents received or produced in their DA's Office in Austin during the period from 8 a.m. January 1, 2021, until 8 a.m. October 23, 2023, that specifically referred to me as being a "crime suspect" or "expected future crime suspect".
----- Forwarded Message -----
From: Ramiro Gonzalez <ramiro.gonzalez@traviscountytx.gov>
To: John McMillan <mcmillanj@att.net>
Cc: Susie Duttinger <susie.duttinger@traviscountytx.gov>; Matthew Entsminger <matthew.entsminger@traviscountytx.gov>; Reva Hall <reva.hall2@traviscountytx.gov>
Sent: Monday, November 6, 2023 at 11:28:27 AM MST
Subject: RE: TCDA ORR #23.0547
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA") regarding your request below. Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information on a disc via regular mail.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
From: John McMillan <mcmillanj@att.net>
Sent: Sunday, October 22, 2023 1:27 AM
To: DAOpenRecordsRequests <DAOpenRecordsRequests@traviscountytx.gov>
Subject: [CAUTION EXTERNAL] 10-22-23 PIR: any TCDA docs re: me as 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
________________________________
To: Open Records Division Coordinator,
Travis County District Attorney's (TCDA) Office,
Travis County Government,
Ronald Earle Building,
416 West 11th Street,
Austin, Texas 78701.
FAX number: 512-854-4206.
Main phone number for your DA's Office: (512) 854-9400.
Sunday, October 22, 2023
Dear Travis County District Attorney's Office Open Records Coordinator,
This is a follow-up Open Records request in which I seek to obtain from you a copy of any and all
e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023.
My full legal name is "John Kevin McMillan". My date of Birth is 4-27-1957, and my birthplace city is Lincoln, Nebraska.
This follow-up public information request was prompted by an October 12, 2023, e-mail reply letter (below) to me in which paralegal Ramiro Gonzalez (of the Travis County Attorney's Office)...informed me in writing that the Travis County District Attorney's Office in Austin is currently seeking official permission from the Attorney General of Texas to withhold from me numerous recent legal documents responsive to a public information request of mine that each directly refer to me by name.
---Forwarded Message -----
"Ramiro Gonzalez"
<Ramiro.Gonzalez@traviscountytx.gov>
To: "mcmillanj@att.net" <
@att.net>
Cc: "Susie Duttinger" <Susie.Duttinger@traviscountytx.gov>, "Matthew Entsminger" <Matthew.Entsminger@traviscountytx.gov>, "Reva Hall" <Reva.Hall2@traviscountytx.gov>
Sent: Thu, Oct 12, 2023 at 11:28 AM
Subject: Response to Request for Information - McMillan, J. (TCDA) #23.0505
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA"). Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information via a separate email.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
_______
I myself officially became a permanent resident of the great state of Utah on January 1, 2023.
During the entire time period ever since State Bar of Texas member attorney Jose Garza assumed elective office as Travis County DA on January 1, 2021, my only residential address in Travis County, Texas, was at the gated-community Pebble Creek Apartments complex in northeast Austin.
My bolt-locked solo-occupancy rental apartment unit address at that complex was: 8805 North Plaza Drive, Apt. 2418, Building 17, Second Floor, Austin, Texas, 78753.
The signed official lease agreement of mine for that solo-occupancy rental apartment unit was officially terminated by me with written consent from the polite management team for Pebble Creek Apartments effective on a cited day during the first week of January in 2022.
My home phone number during the time period when I resided at Pebble Creek Apartments in Austin was (512) 342-2295.
My cell phone number, after I purchased and obtained my first-ever cell phone in August 2019, was and continues to be: (512) 993-7305.
My primary e-mail address has been the same throughout nearly all of this century so far: mcmillanj@att.net.
My solo-occupancy rental-apartment-unit home address ever since June 1, 2022:
535 South 200 East, Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone: (512) 993-7305.
My current home phone: (801) 355-0850.
Thank you in advance for your prompt, very thorough, and authoritative reply letter to me in response to this follow-up Texas Open Records Request of mine to yourself.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 S. 200 E., Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
________________________________
This electronic mail message, including any attachments, may be confidential or privileged under applicable law. This email is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this email, you are notified that any use, dissemination, distribution, copying, disclosure or any other action taken in relation to the content of this email including any attachments is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete the original and any copy of this email, including secure destruction of any printouts.
_________________________________
(Below is the exactly quoted transcript of the November 6, 2023-dated and signed legal letter from Travis County Assistant County Attorney Matthew R. Entsminger that he wrote and sent to Texas Attorney General's Office state agency Open Records Division Chief Justin Gordon in Austin:)
DELIA GARZA
COUNTY ATTORNEY
LUCIO A. DEL TORO
FIRST ASSISTANT
LESLIE DIPPEL
EXECUTIVE COUNTY ATTORNEY
314 W. 11TH STREET
GRANGER BLDG., 5TH FLOOR
AUSTIN, TEXAS 78701
P. O. BOX 1748
AUSTIN, TEXAS 78767
(512) 854-9513
FAX: (512) 854-4808
TRANSACTIONS AND LAND USE
DIVISION
ANN-MARIE SHEELY, DIRECTOR
JAMES D. NICKELL, ASSISTANT DIRECTOR
BARBARA WILSON
MATTHEW R. ENTSMINGER
KATHERINE R. FITE
REBECCA M. COMBS
LINDA D. MARTINEZ
ANN CARDENAS
CHRISTOPHER GILMORE*†
JULIE JOE
JENNIFER L. HOPGOOD
UJAALA RASHID-FERRARO
JACQUELINE A. SÁNCHEZ
1166057-1 383 Page 1 of 3
November 6, 2023
Hand Delivered
Mr. Justin Gordon, Division Chief
Office of the Attorney General of Texas—Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Re: Request from John McMillan received on October 23, 2023
(Footnote 1: The request was sent by email on Sunday, October 22, 2023, during a non-workday; accordingly, the request is
considered received the next business day.)
—Request for Ruling and
Supplemental Brief
Dear Mr. Gordon:
Pursuant to the Texas Public Information Act (“PIA”), the Travis County District Attorney’s
Office (“TCDA”) received a written request for “any and all emails or other documents” regarding a
named individual and listed date range. TCDA will release some emails. TCDA has determined the
remaining information is excepted from required disclosure by Government Code sections 552.107
and 552.111. Accordingly, we request an Attorney General decision on the matter as required by
section 552.301 of the Government Code. Our written comments stating the reason the raised
exceptions apply are set out below. A representative sample of the information at issue is enclosed.
By copy of this letter we are informing the requestor that TCDA intends to withhold some of
the requested information and has asked for a decision from the Attorney General.
Some of the requested information contains privileged attorney-client
communications excepted from disclosure by Government Code section 552.107 and
Texas Rule of Evidence 503.
Government Code section 552.107(1) protects information covered by the attorney-client
privilege. When asserting the attorney-client privilege, a governmental body has the burden of
providing the necessary facts to demonstrate the elements of the privilege to withhold the information
at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate
that the information constitutes or documents a communication. Id. at 7. Second, the communication
must have been made “for the purpose of facilitating the rendition of professional legal services” to
the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney
or representative is involved in some capacity other than that of providing or facilitating professional
legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340
(Tex. App.—Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney
acting in a capacity other than that of attorney).
Thus, a governmental body must inform your office of the identities and capacities of the
individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege
applies only to a confidential communication, id. § 503(b)(1), meaning it was “not intended to be
disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition
of professional legal services to the client or those reasonably necessary for the transmission of the
communication.” Id. § 503(a)(5). Whether a communication meets this definition depends on the
intent of the parties involved at the time the information was communicated. Osborne v. Johnson,
954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no writ). Moreover, because the client may elect to
waive the privilege at any time, a governmental body must explain that the confidentiality of a
communication has been maintained. Section 552.107(1) generally excepts an entire communication
that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the
governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to
entire communication, including facts contained therein).
Some of the requested information, as marked, consists of email communications between
and among officials and employees from TCDA (footnote 2: Jackie Wood and Efrain De la Fuente, Assistant District Attorneys; Sara Guerra Winn and Susie Duttinger, paralegals; Ashley Zamarron, Isabella Salinas and Bridget Martinez, legal secretaries)
and attorneys with the Travis County Attorney’s Office (footnote 3: Assistant County Attorneys Matthew Entsminger and Michelle Case; Ramiro Gonzalez, paralegal).
These emails document communications made for the purpose of facilitating the rendition of
professional legal services to TCDA. These emails were made in confidence and confidentiality has
been maintained. Accordingly, TCDA intends to withhold these privileged communications pursuant
to Government Code section 552.107 and Texas Rule of Evidence 503.
The remaining information at issue may be withheld under Government Code
section 552.111 as attorney work product.
Section 552.111 of the Government Code excepts from disclosure “[a]n interagency or
intraagency memorandum or letter that would not be available by law to a party in litigation with the
agency[.]” Gov’t Code § 552.111. This section encompasses the attorney work product privilege
found in rule 192.5 of the Texas Rules of Civil Procedure. City of Garland v. Dallas Morning News,
22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 677 (2002). Rule 192.5 defines work
product as:
(1) material prepared or mental impressions developed in anticipation of litigation or
for trial by or for a party or a party’s representatives, including the party’s attorneys,
consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and
the party’s representatives or among a party's representatives, including a party’s
attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
TEX. R. CIV. P. 192.5(a)(1)-(2). A governmental body seeking to withhold information under this
exception bears the burden of demonstrating the information was created or developed for trial or in
anticipation of litigation by or for a party or party’s representative. Id.; ORD 677 at 6-8.
For your office to conclude that the information was made or developed in anticipation of
litigation, a governmental body must show that:
a) a reasonable person would have concluded from the totality of the circumstances ...
that there was a substantial chance that litigation would ensue; and
b) the party resisting discovery believed in good faith that there was a substantial
chance that litigation would ensue and [created or obtained the information] for the
purpose of preparing for such litigation.
Nat’t Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A “substantial chance” of litigation
does not mean a statistical probability, but rather “that litigation is more than merely an abstract
possibility or unwarranted fear.” Id. at 204; ORD 677 at 7.
The information at issue relates to an Open Records Complaint against TCDA brought to the
Attorney General’s office, which is the appropriate authority for pursuing such complaints.
Accordingly, TCDA may withhold the remaining responsive information under the attorney work
product privilege of section 552.111 of the Government Code.
In conclusion, we request your determination as to whether the information at issue may be
withheld from the requestor. If you have any questions, please contact me at (512) 854-9642, or by
e-mail at matthew.entsminger@traviscountytx.gov.
Sincerely,
Matthew Entsminger
Assistant County Attorney
Encl. Request letter; representative sample of requested records
c: Susie Duttinger, TCDA
(via email, without enclosures)
John McMillan
535 South 200 East, Apt. 912, Ninth Floor
Salt Lake City, UT 84111
(via email to: mcmillanj@att.net, without enclosures
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
Dear Paralegal Ramiro Gonzalez in the Travis County Attorney's Office in Austin, Texas,
Thank you for your November 8, 2023, e-mail reply (below) letter to me.
I have been previously informed by your very influential DA's Office that a disc of stored legal documents was to be sent to me on Monday, November 6, that were reportedly "responsive" to my October 23, 2023, Open Records Request.
That request of mine had requested "a copy of any and all
e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023."
Mr. Gonzalez, please confirm for me in writing that the disc sent to me on Monday comprised a complete and final response to my October 23 information request.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 South 200 East, Apt. 912, Salt Lake City, UT 84111.
Sent from AT&T Yahoo Mail on Android [go.onelink.me]
On Wed, Nov 8, 2023 at 8:12 AM, Ramiro Gonzalez
<Ramiro.Gonzalez@traviscountytx.gov> wrote:
Dear Mr. McMillan,
Thank you for pointing out your comment below. In light of that, the Travis County District Attorney’s Office does not have any responsive information regarding your request. Please see the attached withdrawal letter regarding your request for public information.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
From: John McMillan <mcmillanj@att.net>
Sent: Monday, November 6, 2023 7:32 PM
To: Matthew Entsminger <Matthew.Entsminger@traviscountytx.gov>; Ramiro Gonzalez <Ramiro.Gonzalez@traviscountytx.gov
Subject: [CAUTION EXTERNAL] Fw: Text of Travis County Government's Legal Request to TX OAG to withhold from me one or more docs about my being a 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
From public-information requestor John Kevin McMillan, 535 South 200 East. Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone number: (512) 993-7305. My home phone: (512) 801-355-0850.
November 6, 2023
A respectful FYI to each of you very influential government officials and law-enforcement officers on the following e-mail letter and attached officially signed legal correspondence I received this Monday, November 6, 2023, from Paralegal Ramiro "Ram" Gonzalez of the Travis County Attorney's Office in Austin, Texas, and from Travis County Assistant County Attorney Matthew R. Entsminger, respectively. Please note that I have bold-faced some of the text in order to call attention to it.
The e-mail letter and the attached legal letter seeking official permission from the Attorney General of Texas to withhold legal documents from me were in response to my October 23, 2023-received e-mail Open Records Request to the Travis County District Attorney's Office in which I sought a copy of any and all legal documents received or produced in their DA's Office in Austin during the period from 8 a.m. January 1, 2021, until 8 a.m. October 23, 2023, that specifically referred to me as being a "crime suspect" or "expected future crime suspect".
----- Forwarded Message -----
From: Ramiro Gonzalez <ramiro.gonzalez@traviscountytx.gov>
To: John McMillan <mcmillanj@att.net>
Cc: Susie Duttinger <susie.duttinger@traviscountytx.gov>; Matthew Entsminger <matthew.entsminger@traviscountytx.gov>; Reva Hall <reva.hall2@traviscountytx.gov>
Sent: Monday, November 6, 2023 at 11:28:27 AM MST
Subject: RE: TCDA ORR #23.0547
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA") regarding your request below. Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information on a disc via regular mail.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
From: John McMillan <mcmillanj@att.net>
Sent: Sunday, October 22, 2023 1:27 AM
To: DAOpenRecordsRequests <DAOpenRecordsRequests@traviscountytx.gov>
Subject: [CAUTION EXTERNAL] 10-22-23 PIR: any TCDA docs re: me as 'crime suspect'
CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.
________________________________
To: Open Records Division Coordinator,
Travis County District Attorney's (TCDA) Office,
Travis County Government,
Ronald Earle Building,
416 West 11th Street,
Austin, Texas 78701.
FAX number: 512-854-4206.
Main phone number for your DA's Office: (512) 854-9400.
Sunday, October 22, 2023
Dear Travis County District Attorney's Office Open Records Coordinator,
This is a follow-up Open Records request in which I seek to obtain from you a copy of any and all
e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023.
My full legal name is "John Kevin McMillan". My date of Birth is 4-27-1957, and my birthplace city is Lincoln, Nebraska.
This follow-up public information request was prompted by an October 12, 2023, e-mail reply letter (below) to me in which paralegal Ramiro Gonzalez (of the Travis County Attorney's Office)...informed me in writing that the Travis County District Attorney's Office in Austin is currently seeking official permission from the Attorney General of Texas to withhold from me numerous recent legal documents responsive to a public information request of mine that each directly refer to me by name.
---Forwarded Message -----
"Ramiro Gonzalez"
<Ramiro.Gonzalez@traviscountytx.gov>
To: "mcmillanj@att.net" <
@att.net>
Cc: "Susie Duttinger" <Susie.Duttinger@traviscountytx.gov>, "Matthew Entsminger" <Matthew.Entsminger@traviscountytx.gov>, "Reva Hall" <Reva.Hall2@traviscountytx.gov>
Sent: Thu, Oct 12, 2023 at 11:28 AM
Subject: Response to Request for Information - McMillan, J. (TCDA) #23.0505
Dear Mr. McMillan,
This email is on behalf of the Travis County District Attorney's Office ("TCDA"). Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information via a separate email.
Respectfully,
Ramiro “Ram” Gonzalez
Paralegal
Travis County Attorney’s Office
(512) 854-6470
_______
I myself officially became a permanent resident of the great state of Utah on January 1, 2023.
During the entire time period ever since State Bar of Texas member attorney Jose Garza assumed elective office as Travis County DA on January 1, 2021, my only residential address in Travis County, Texas, was at the gated-community Pebble Creek Apartments complex in northeast Austin.
My bolt-locked solo-occupancy rental apartment unit address at that complex was: 8805 North Plaza Drive, Apt. 2418, Building 17, Second Floor, Austin, Texas, 78753.
The signed official lease agreement of mine for that solo-occupancy rental apartment unit was officially terminated by me with written consent from the polite management team for Pebble Creek Apartments effective on a cited day during the first week of January in 2022.
My home phone number during the time period when I resided at Pebble Creek Apartments in Austin was (512) 342-2295.
My cell phone number, after I purchased and obtained my first-ever cell phone in August 2019, was and continues to be: (512) 993-7305.
My primary e-mail address has been the same throughout nearly all of this century so far: mcmillanj@att.net.
My solo-occupancy rental-apartment-unit home address ever since June 1, 2022:
535 South 200 East, Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
My cell phone: (512) 993-7305.
My current home phone: (801) 355-0850.
Thank you in advance for your prompt, very thorough, and authoritative reply letter to me in response to this follow-up Texas Open Records Request of mine to yourself.
Sincerely and Best Wishes,
requestor John Kevin McMillan, 535 S. 200 E., Apt. 912, Ninth Floor, Salt Lake City, UT 84111.
________________________________
This electronic mail message, including any attachments, may be confidential or privileged under applicable law. This email is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this email, you are notified that any use, dissemination, distribution, copying, disclosure or any other action taken in relation to the content of this email including any attachments is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete the original and any copy of this email, including secure destruction of any printouts.
_________________________________
(Below is the exactly quoted transcript of the November 6, 2023-dated and signed legal letter from Travis County Assistant County Attorney Matthew R. Entsminger that he wrote and sent to Texas Attorney General's Office state agency Open Records Division Chief Justin Gordon in Austin:)
DELIA GARZA
COUNTY ATTORNEY
LUCIO A. DEL TORO
FIRST ASSISTANT
LESLIE DIPPEL
EXECUTIVE COUNTY ATTORNEY
314 W. 11TH STREET
GRANGER BLDG., 5TH FLOOR
AUSTIN, TEXAS 78701
P. O. BOX 1748
AUSTIN, TEXAS 78767
(512) 854-9513
FAX: (512) 854-4808
TRANSACTIONS AND LAND USE
DIVISION
ANN-MARIE SHEELY, DIRECTOR
JAMES D. NICKELL, ASSISTANT DIRECTOR
BARBARA WILSON
MATTHEW R. ENTSMINGER
KATHERINE R. FITE
REBECCA M. COMBS
LINDA D. MARTINEZ
ANN CARDENAS
CHRISTOPHER GILMORE*†
JULIE JOE
JENNIFER L. HOPGOOD
UJAALA RASHID-FERRARO
JACQUELINE A. SÁNCHEZ
1166057-1 383 Page 1 of 3
November 6, 2023
Hand Delivered
Mr. Justin Gordon, Division Chief
Office of the Attorney General of Texas—Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Re: Request from John McMillan received on October 23, 2023
(Footnote 1: The request was sent by email on Sunday, October 22, 2023, during a non-workday; accordingly, the request is
considered received the next business day.)
—Request for Ruling and
Supplemental Brief
Dear Mr. Gordon:
Pursuant to the Texas Public Information Act (“PIA”), the Travis County District Attorney’s
Office (“TCDA”) received a written request for “any and all emails or other documents” regarding a
named individual and listed date range. TCDA will release some emails. TCDA has determined the
remaining information is excepted from required disclosure by Government Code sections 552.107
and 552.111. Accordingly, we request an Attorney General decision on the matter as required by
section 552.301 of the Government Code. Our written comments stating the reason the raised
exceptions apply are set out below. A representative sample of the information at issue is enclosed.
By copy of this letter we are informing the requestor that TCDA intends to withhold some of
the requested information and has asked for a decision from the Attorney General.
Some of the requested information contains privileged attorney-client
communications excepted from disclosure by Government Code section 552.107 and
Texas Rule of Evidence 503.
Government Code section 552.107(1) protects information covered by the attorney-client
privilege. When asserting the attorney-client privilege, a governmental body has the burden of
providing the necessary facts to demonstrate the elements of the privilege to withhold the information
at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate
that the information constitutes or documents a communication. Id. at 7. Second, the communication
must have been made “for the purpose of facilitating the rendition of professional legal services” to
the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney
or representative is involved in some capacity other than that of providing or facilitating professional
legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340
(Tex. App.—Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney
acting in a capacity other than that of attorney).
Thus, a governmental body must inform your office of the identities and capacities of the
individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege
applies only to a confidential communication, id. § 503(b)(1), meaning it was “not intended to be
disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition
of professional legal services to the client or those reasonably necessary for the transmission of the
communication.” Id. § 503(a)(5). Whether a communication meets this definition depends on the
intent of the parties involved at the time the information was communicated. Osborne v. Johnson,
954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no writ). Moreover, because the client may elect to
waive the privilege at any time, a governmental body must explain that the confidentiality of a
communication has been maintained. Section 552.107(1) generally excepts an entire communication
that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the
governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to
entire communication, including facts contained therein).
Some of the requested information, as marked, consists of email communications between
and among officials and employees from TCDA (footnote 2: Jackie Wood and Efrain De la Fuente, Assistant District Attorneys; Sara Guerra Winn and Susie Duttinger, paralegals; Ashley Zamarron, Isabella Salinas and Bridget Martinez, legal secretaries)
and attorneys with the Travis County Attorney’s Office (footnote 3: Assistant County Attorneys Matthew Entsminger and Michelle Case; Ramiro Gonzalez, paralegal).
These emails document communications made for the purpose of facilitating the rendition of
professional legal services to TCDA. These emails were made in confidence and confidentiality has
been maintained. Accordingly, TCDA intends to withhold these privileged communications pursuant
to Government Code section 552.107 and Texas Rule of Evidence 503.
The remaining information at issue may be withheld under Government Code
section 552.111 as attorney work product.
Section 552.111 of the Government Code excepts from disclosure “[a]n interagency or
intraagency memorandum or letter that would not be available by law to a party in litigation with the
agency[.]” Gov’t Code § 552.111. This section encompasses the attorney work product privilege
found in rule 192.5 of the Texas Rules of Civil Procedure. City of Garland v. Dallas Morning News,
22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 677 (2002). Rule 192.5 defines work
product as:
(1) material prepared or mental impressions developed in anticipation of litigation or
for trial by or for a party or a party’s representatives, including the party’s attorneys,
consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and
the party’s representatives or among a party's representatives, including a party’s
attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
TEX. R. CIV. P. 192.5(a)(1)-(2). A governmental body seeking to withhold information under this
exception bears the burden of demonstrating the information was created or developed for trial or in
anticipation of litigation by or for a party or party’s representative. Id.; ORD 677 at 6-8.
For your office to conclude that the information was made or developed in anticipation of
litigation, a governmental body must show that:
a) a reasonable person would have concluded from the totality of the circumstances ...
that there was a substantial chance that litigation would ensue; and
b) the party resisting discovery believed in good faith that there was a substantial
chance that litigation would ensue and [created or obtained the information] for the
purpose of preparing for such litigation.
Nat’t Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A “substantial chance” of litigation
does not mean a statistical probability, but rather “that litigation is more than merely an abstract
possibility or unwarranted fear.” Id. at 204; ORD 677 at 7.
The information at issue relates to an Open Records Complaint against TCDA brought to the
Attorney General’s office, which is the appropriate authority for pursuing such complaints.
Accordingly, TCDA may withhold the remaining responsive information under the attorney work
product privilege of section 552.111 of the Government Code.
In conclusion, we request your determination as to whether the information at issue may be
withheld from the requestor. If you have any questions, please contact me at (512) 854-9642, or by
e-mail at matthew.entsminger@traviscountytx.gov.
Sincerely,
Matthew Entsminger
Assistant County Attorney
Encl. Request letter; representative sample of requested records
c: Susie Duttinger, TCDA
(via email, without enclosures)
John McMillan
535 South 200 East, Apt. 912, Ninth Floor
Salt Lake City, UT 84111
(via email to: mcmillanj@att.net, without enclosures
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